Professor Wang Xi is Director of Environmental and Resource Law Institute at Shanghai Jiao Tong University. With an LLM degree from Washington University and a JD degree from Wuhan University, Wang's focus has been on strengthening environmental protection through legislation. As a CPPCC member, his proposals are directed at improving the government's role of supervision in environmental issues.

According to Blacksmith Institute 2008 annual report, only 1% of China’s 560 million urban dwellers breathe air considered safe by the European Union, and nearly 500 million lack access to safe drinking water. The country's dependence on coal and the poor emission standards of some vehicles are the main causes of pollution. But many environmental experts also blame "government failures". Amid the current financial turmoil, the Chinese government is expected to spend a quarter of its 4 trillion Yuan stimulus package to help reduce pollution. What does government failure mean? Can it be fixed through legislative efforts?

Government failure

A: Thank you very much for joining us, Professor, we appreciate it.

W: Thank you.

A: This is going to be the second time you talk about the “government failures” in the environmental protection during the two sessions, you use the term specifically “government failure”. Can you talk a little about what those government failures are?

W: The term, “government failure” is a special term used by economist, so it should not be understood as a general term. “Government failure”, that’s a big problem. But in terms of economics, government failure is a problem.

A: How big are the problems in the environmental protection in China?

W: The report of the National Committee of the Communist Party in the recent year said the cost of economic growth for environment and resources is too high. So this conclusion shows that the current pattern of economic growth is unsustainable. So this is a kind of market failure.

A: Can you give us a specific case of where government failure in the environmental protection area has come forward?

W: One recent example is the Taihu Lake, the Tai Lake; it’s a big lake near Shanghai. 2 years ago, because of the serious pollution, people along the lake lost their drinking water; they don’t have drinking water, because water there is so dirty. It’s kind of emergency for some of the cities and towns nearby the lake. I think that’s a good example of government failure in terms of regulation. If all of the local government along the lake is really serious about the water pollutant discharge long time ago, there will be no such kind of emergency or accident happen 2 years ago.

A: How did they get that serious? Did the local government not report the problem to the state government?

Local government priorities

W: I think the local government, they know the situation, but they just don’t have the motivation to control it, because the main leader of their government is focused on economic growth only, and also because if they want to control this kind of pollution, they need a lot of financial resources, they need money to put aside for that, but that is also something the local government don’t want to do, they want to use all of their money for economic purposes.

A: I would think economically even though, it would be a good idea to get a problem like that solved because then, in that instance, you get people who get sick and then and they are depending on the government for money then.

W: Now we have to spend much, much more money to solve this problem. Mostly government officials at local level or even at central level, the N.1 priority is to promote economic growth. So, usually they forget about the cost. They focus on to promote economy in the five year of their official term. And what is cost for the future long time? They largely ignored. So that’s why our research found out one of the reason for this problem is, in our law, there is no system or provision or legal system to check this kind of governmental mistake or governmental mistake or governmental failure. Our law is mostly focused on enterprises, business. Our law has many detailed provisions on controlling pollutant discharge or this kind of things. It seldom has a system or provisions about performance or behavior for government. I don’t think you can put all the blame on business; the government should take major part of this blame.

A: I read it in an article that you had written that there’s a lack of communication that seems from the state level to some of the local levels in implanting these changes.

W: Currently the top of our government has realized this problem and is really serious about it. But the lower level of the government, because officials at local level have got used to the old economic growth pattern and they are mostly still following the old pattern of economic growth.

A: Would you think that maybe there needs to be almost a new position created that is a person or a department that work with the state and the local levels?

W: The central government tried one way to establish more supervision from the central government to local government. For example, the environmental ministry of China has set up 6 regional centers, just like that in the US, 6 regional centers to supervise the local government performance in environmental protection. However, we need to do more than that.

A: What do you think needs to be done even more?

W: The local officials, they belong to the local government. So even thought the central government finds out some problem, or find out they didn’t follow environmental law, but the government have no direct control on local officials, even though the government has set up regional centers. So we need to find a way to let local officials be serious about environmental protection.

A: Do you feel like the government is taking it seriously, the issues in getting some protection out there?

W: The government has made important policies called “saving energy and reduce pollution”. That’s a national policy and national program. Now everywhere, every province has their compulsory target for reducing energy consumption and for reducing pollutant discharge. The data of last 3 years shows that the pollution and energy consumption, the curve’s little bit turning down. The situation of China is near the turning point, I would say.

Legislative improvement

In 1979, China issued a trial version of the Environmental Protection Law. The law went through a full 10 years of testing before it was officially put into effect. It hasn't been revised in nearly 30 years. Only 2 out of 47 clauses are focused on the supervision and restrictions of government actions. The lack of such clauses has drawn concerns that government officials are not doing their job. The amendment of the Law has been discussed in the "two sessions" since 2006. Suggestions centered on higher governmental responsibility and stronger public rights.

A: So the environmental protection law has not been changed in thirty years. Why so long?

W: Yeah, I think one of the reasons is a good reason because after this law was promoted the Chinese congress has passed many special laws dealing with different pollution problems, like one law dealing with air pollution, one law dealing with water pollution, one dealing with sewage pollution, and noise pollution. So the congress focus on developing this kind of specialized law and put all kinds of environmental problems and the regulations of this specialized law. Environmental protection law is a law, like more comprehensive. So thirty years later, now we find out because we have all those specialized, detailed law, then the so-called mother law, we call the mother law really need to be changed. One reason is because many revision, the revision of the mother law, the environmental protection law has been detailized by those specialized law. And another reason is, after thirty years China has changed so much. Basically China has changed from centralized planned economy into market economy. This law, the environmental protection law still has many influence of planned economy, so we need to change it.

A: Just looking at that Article 6 says that, “all units and individuals shall have the obligation to protect the environment and shall have the right to report on or file charges against units or individuals that cause pollution or damage to the environment.” Reading that, to me, it sounds so vague. What can anyone do to enforce the law?

W: This is one of the typical phenomena of Chinese environmental law. In our law, we have many these kind of provisions, you know, vague.

A: Is there any enforcement capabilities in the old law? Can anyone be prosecuted for breaking in, or are there so many loopholes that it doesn’t ever go that far?

W: So far the enforcement of the environmental law is not as good as people had expected. There are many loopholes on one hand. On the other hand, there are still some enforcement mechanisms. In our criminal code, we have provisions dealing with this kind of, we call environmental crime.

A: I wonder too, is it hard in a situation like that, we are talking about the lake, to pin point, who the major contributor is?

W: I think it’s more important than dealing with the sudden happened accident because this kind of daily operation really cause problem in the future time. In the past years, the local officials, they mostly ignored this kind of duty. So if we change our law and make a… you know, let the law say “no, you have to be serious about your environment duty.” If you are not serious about to perform your daily environment duty, you will have problems because of the law. You may get some punishments. The previous law, our existing law, this part of provisions is very weak.

A: What are the things that need to be added to the law to make it stronger?

W: I think one way is to increase the supervision from the congress to the government. The congress men can go through some channel set by the law to say something to the government of all governmental officials. That’s one way. Another way is to let the central government have some legal channel to supervise local government. In the previous years, many times the central government found the problems. But they just have no control or no check, because in our law, there is no this kind of arrangements. Thirdly, we need channels set by law to help the society to say something about the local government. Many people at local level, they see the problem, but they have no way to express themselves through the legal arrangement. We need to amend our environmental law to add one system in the law, add one new system in the environmental protection law. That is system for information disclosure at one hand, and on the other hand is supervision and check from central government, from the congress and from the whole society from people.

A: Is there any conflict or dissention that might arise as we try to get tougher laws passed?

W: I think so. This kind of change of law is really one of the key parts of reform, or political reform. So it will hit the interest of some existing interest holder. For example, some local officials, they may don't want to change. If we change the law, we put all kinds of supervision and check, then this kind of issue, they have think about to change or not. It’s kind of in conflict with their personal interest. So it’s not an easy thing to do but it’s something we must do.

Environmental protection in economic downturn

Environmental issues are always on Wang Xi's mind. Along with pushing to improve government supervision of the environment, he is urging lawmakers to keep sustainable development in mind when dealing with the current financial crisis. Fixing the economy is important, but it can't be done at the sacrifice of environment.

A: The stimulus package that was recently announced, I think it’s 25% of the stimulus package is supposed to go to environmental protection, procedures, and initiatives. Can you explain to us a little bit about what that money will go to?

W: This is very good news for environment of China. As far as I know, most of this money will go to; a large proportion of this money will go to environmental infrastructure construction, such as sewage plant. One problem for the pollution like Tai Lake is that there is no enough sewage plant and the local government always says “we don’t have the money to do that.” Now the central government invests some money and also the local government has to patch with the central investment. So they have no excuse. They have also invested some money.

A: Is China under a spotlight at all still from the Olympics that so much was put into cleaning the air up in Beijing for the athletes and for the games, is that spotlight making more of an issue making it more important to get these things cleaned up?

W: Yes, the effort made by Beijing city to clean up the city sets a good example for other parts of China. Beijing city took the opportunity of the Olympic Game to invest a lot of money to improve the infrastructure related to environment and to move out many of the polluting industries out of city and to change the production technology and transportation and so on. This kind of experience will be very good for other parts of China, other cities like Shanghai. Shanghai is working on the 2010 World Expo, a lot of efforts made by city government.

A: Hopefully the financial implications in the long run could be a good driving force to give the government to act.

W: Now because China has accumulated much better economic strength than before and also because of the current economic crisis, the policy is to encourage the domestic market and also the government has earmarked big money for environmental protection construction. So it’s a good time for the legislature to make this change.

A: Do you think the economic downturn will make the situation worse or better in terms of getting legislation, tough legislation get passed?

W: For China, I think the crisis is another good thing. But this kind of change, it’s good because the economic crisis caused the government to further realize that environmental and energy problem or environmental resources problem is really a problem. For the long-term economic growth, we have to change and also at the crisis time people tend to be more serious than before about their jobs, their work and also the government has decided to invest a lot of money to environmental protection. So it makes the bad thing into good thing.

A: Into a good thing? Because a lot of people will argue that development should come first and environment is going to come second, but it’s not necessarily true, right? I would like to think you would say “Yes”.

W: I would say the best way for China is to develop and also environmental protection at the same time, so development makes change. Develop economy along the way of sustainable development. So develop and then gradually change. That’s the best way.

A: Any suggestions down the road, once we get past some of this economic crisis that we've been dealing with? Maybe some new initiatives should be looked at?

W: The current situation, I say environmental, I feel, although we are facing a serious environmental problem, but the current government policy is really in favor of environmental protections. So I feel very encouraged. I think now is the best time for environmental protection course in China.

Bottom line.. Experts say changing china's environmtal protection law needs to be a prority. Not only will it help clean up the air, land, and water.. It could help the government save money down the road by eliminating the need to clean up polluted and dangerous areas.. And pay for the damages they cause.